Recklessness (Malice)

[4-080] Introduction

The Crimes Amendment Act 2007 removed the concept of malice as a fault element in various offences under the Crimes Act 1900 with the repeal of s 5 of that Act. The amending Act also repealed offences under s 35 and created new offences which replaced the ingredient “maliciously” with “reckless”. As to the application of these amendments, see below.

Section 4A was inserted into the Crimes Act by the Criminal Legislation Amendment Act 2007 (Sch 3[1]), which commenced on 15 November 2007. There was no transitional provision for the amendment. Section 4A provides:

For the purposes of this Act, if an element of an offence is recklessness, that element may also be established by proof of intention or knowledge.

The object of the amendment was to allow the Crown to rely upon an accused’s intention for the purpose of proving he or she was reckless.

Following the repeal of malice in s 5, the decision in Blackwell v R (2011) 81 NSWLR 119 held that recklessness under s 35(2) (repealed) Crimes Act following the enactment of the Crimes Amendment Act 2007 meant a foresight of the possibility of the infliction of grievous bodily harm. Consequently, an injury is caused recklessly if the accused realised that grievous bodily harm may possibly be inflicted upon the victim by his or her actions, yet he or she went ahead and acted as he or she did. Blackwell v R was specifically concerned with the previous form of the offence under s 35(2) involving grievous bodily harm: CB v Director of Public Prosecutions (NSW) [2014] NSWCA 134 at [13]. The terms of the specific offence will define the parameters of what the Crown is required to prove: CB v Director of Public Prosecutions (NSW) at [40].

The Crimes Amendment (Reckless Infliction of Harm) Act 2012 was passed as a direct response to Blackwell v R. A number of offences (listed below) were amended, in effect, to apply the common law concept of recklessness that existed under the now repealed s 5. The amendment applies to the relevant offences when they are committed on or after 21 June 2012.

Therefore there are three classes of offences involving “recklessness”:

1. 

Offences involving s 5 (repealed) — malice

Section 5 (repealed) applies to offences under s 35 committed before 27 September 2007 and to other offences listed in 2(b) below committed before 15 February 2008. Recklessness is a form of malice under s 5. See further discussion at [4-082] and a suggested direction for these offences at [4-085].

2. 

Offences with recklessness as an ingredient after the repeal of s 5

(a) 

Offences under ss 35(1) and 35(2) (recklessly cause grievous bodily harm in company and recklessly cause grievous bodily harm) committed on or after 27 September 2007 but before 21 June 2012 to which Blackwell v R (2011) 81 NSWLR 119 applies. The latter date is the enactment of the Crimes Amendment (Reckless Infliction of Harm) Act 2012 (see below). However, Blackwell v R does not apply to the previous form of offences of recklessly wounding under s 35(3) and (4) (now repealed) committed before 21 June 2012, because, at common law, there was never a “lesser” mental element for malicious wounding: Chen v R [2013] NSWCCA 116 at [65]. The physical element of the offence was, unlike grievous bodily harm, not founded on a gradation of seriousness. A wound was inflicted or not — albeit one not necessarily as serious as that actually inflicted: Chen v R at [51]. However, from 21 June 2012, the offences of reckless wounding do not require foresight of the possibility of wounding; it is enough if the Crown proves the accused was reckless as to the infliction of actual bodily harm: Chen v R at [66]. See the current form of s 35 Crimes Act. For a suggested direction for these offences: see [4-092].

(b) 

Offences which have recklessness as an ingredient committed on or after:

(i) 

15 February 2008 under:

  • s 31 — documents containing threats

  • s 32 — impeding endeavours to escape shipwreck

  • s 35A — causing dog to inflict actual or grievous bodily harm

  • s 39 — using poison etc to endanger life or inflict grievous bodily harm

  • s 42 — injuring child at time of birth

  • s 46 — causing bodily injury by gunpowder etc

  • s 61J — aggravated sexual assault involving actual bodily harm

  • s 61JA — aggravated sexual assault in company involving actual bodily harm

  • s 61K — assault with intent to have sexual intercourse

  • s 66C — aggravated sexual intercourse with child between 10 and 16 years involving actual bodily harm

  • s 80A — aggravated sexual assault by forced self-manipulation involving actual bodily harm

  • s 95 — aggravated robbery involving actual bodily harm

  • s 138 — stealing or destroying official records

  • s 154C — aggravated car-jacking involving actual bodily harms

  • s 195 — destroying or damaging property. The Crown must prove foresight of harm to property to any degree from minor damage to destruction: CB v Director of Public Prosecutions (NSW) [2014] NSWCA 134 at [45]. If the result of the accused’s acts is slight or moderate damage, recklessness will be established if the proved foresight was of destruction; and if the result is destruction, recklessness will be established if the proved foresight was of slight or moderate damage: CB v Director of Public Prosecutions (NSW) at [45].

  • s 201 — interfering with a mine

  • s 202 — causing damage to sea, river, canal, etc

  • s 210 — destroying or damaging aid to navigation etc.

(ii) 

15 February 2008 but before 21 June 2012 under:

  • s 60(3), (3A) — grievous bodily harm or wounding of police officers

  • s 60A(3) — grievous bodily harm or wounding of law enforcement officers

  • s 60E(3) — assaults at schools

  • s 109, 111–113 — aggravated or specially aggravated break and enter offences.

Blackwell v R (2011) 208 A Crim R 392 applies to the offences listed above which had a grievous bodily harm ingredient and were committed in the date range. Chen v R [2013] NSWCCA 116 at [65] applies to those offences above which had wounding as an ingredient committed before 21 June 2012.

(c) 

Offences which, even prior to the removal of the term “maliciously”, include recklessness as an available element:

  • s 43A — failure of person with parental responsibility to care for child

  • s 80D — causing sexual servitude

  • s 80E — conducting business involving sexual servitude

  • s 93GA — firing at dwelling houses or building

  • s 93T — participation in criminal groups

  • s 178BA (repealed) — obtain money by deception

  • s 178BB (repealed) — obtain money by false or misleading statement

  • s 185A (repealed) — inducing person to enter into arrangement by false or misleading statement

  • s 193B — money laundering

  • s 193D — dealing with instrument of crime

  • s 203E — causing a fire

  • s 204 — destruction or damage to aircraft or vessel

  • s 307A — false or misleading applications

  • s 308D — unauthorised modification of computer data

  • s 308E — unauthorised impairment of electronic communication

  • s 529 — criminal defamation.

3. 

Particular offences involving the infliction of grievous bodily harm or wounding following the Crimes Amendment (Reckless Infliction of Harm) Act 2012 committed on or after 21 June 2012.

These offences are:

  • s 35 — the basic and aggravated forms of reckless grievous bodily harm or wounding

  • s 60 — assault and other actions against police officers s 60A — assault and other actions against law enforcements officers (other than police officers)

  • s 60E — assaults etc at schools.

The definitions in s 105A, for the purposes of specially aggravated break and enter offences in ss 109, 111-113, have also been amended to clarify that only recklessness as to causing actual bodily harm is required where the offence is committed on or after 21 June 2012.

For a suggested direction for these offences, see [4-095].

The following offences have recklessness and grievous bodily harm as ingredients but were not included in the Crimes Amendment (Reckless Infliction of Harm) Act 2012:

  • s 42 — injuring child at time of birth

  • s 35A — causing dog to inflict actual or grievous bodily harm.

[4-082] Malice before repeal of s 5

Other than murder, the degree of recklessness required in order to establish that an act was done maliciously is a realisation, on the part of the accused, that the particular kind of harm in fact done (that is, some physical harm — but not necessarily the degree of harm in fact done) might be inflicted (that is, may possibly be inflicted), yet the accused went ahead and acted: see Coleman v R (1990) 19 NSWLR 467 at 475; R v Stokes (1990) 51 A Crim R 25 at 40-41; Pengilley v R [2006] NSWCCA 163 at [45]. Chen v R [2013] NSWCCA 116 at [65] (explained at [4-080] above) applies to offences which had wounding as an ingredient before the repeal of s 5.

[4-085] Suggested direction — recklessness before the repeal of malice

The element of recklessness is made out if you are satisfied beyond reasonable doubt that the injury [or damage] was caused recklessly by [the accused]. An injury [or damage] is caused recklessly if [the accused] realised that some physical harm [or damage] may possibly be inflicted upon [the victim] [or caused to the property] by [his/her] actions yet [he/she] went ahead and acted as [he/she] did. It is not necessary that [the accused] realised the degree of harm [or damage] that was in fact caused provided that [he/she] realised that some harm [or damage] of that type would possibly occur. [The accused] cannot be found to have acted recklessly unless the Crown proves that [the accused] actually thought about the consequences of [his/her] act and at least realised the possibility of some harm [or damage] of that type occurring.

[4-090] Offences with the ingredient recklessly cause/inflict a particular kind of harm where Blackwell v R applies

Where the charge refers to the harm inflicted as grievous bodily harm, the Crown must prove that the accused at least foresaw the possibility of the infliction of grievous bodily harm resulting from his or her intentional act: Blackwell v R (2011) 208 A Crim R 392. Similarly, in the case of the reckless infliction of actual bodily harm or reckless wounding, the Crown must prove beyond reasonable doubt that the accused foresaw the possibility of that particular type of harm resulting: Chen v R [2013] NSWCCA 116 at [65]. Section 4A (discussed at [4-080]) additionally provides that recklessness can be proved by intention or knowledge.

[4-092] Suggested direction — offences with the ingredient recklessly cause/inflict a particular kind of harm

The element of recklessness is made out if you are satisfied beyond reasonable doubt that the injury was [caused/inflicted] recklessly by [the accused]. An injury is [caused/inflicted] recklessly if [the accused] realised that [insert applicable ingredient: grievous bodily harm/wounding/actual bodily harm] may possibly be [caused/inflicted] upon [the victim] by [his/her] actions yet [he/she] went ahead and acted as [he/she] did. [The accused] cannot be found to have acted recklessly unless the Crown proves that [the accused] actually thought about the consequences of [his/her] act and at least realised the possibility of [insert applicable ingredient: grievous bodily harm/wounding/actual bodily harm] occurring.

For directions on Intention: see [3-200]–[3-220].

[4-095] Particular offences involving the infliction of grievous bodily harm or wounding following the Crimes Amendment (Reckless Infliction of Harm) Act 2012

These offences under ss 35, 60, 60A and 60E and the definition of “circumstances of special aggravation” under s 105A Crimes Act involve the infliction of grievous bodily harm or wounding yet the mental element in each case is recklessness as to the infliction of actual bodily harm.

[4-097] Suggested direction — particular offences following the Crimes Amendment (Reckless Infliction of Harm) Act 2012

In this charge the Crown must prove beyond reasonable doubt that [the accused] inflicted [grievous bodily harm/a wound] upon [the victim] and was reckless when inflicting that injury. The element of recklessness is made out if you are satisfied beyond reasonable doubt that [the accused] at the time of the infliction of the injury realised that [he/she] may possibly [cause/inflict] actual bodily harm to [the alleged victim] by [his/her] actions yet [he/she] went ahead and acted as [he/she] did. Actual bodily harm is any hurt or injury that interferes with the health or comfort of a person. The injury does not need to be permanent but it must have more than a fleeting or trivial affect upon the victim such as fear or panic at the time of the incident. [The accused] cannot be found to have acted recklessly unless the Crown proves that [he/she] actually thought about the consequences of [his/her] act and at least realised the possibility of actual bodily harm occurring to [the victim]. The Crown does not have to prove that [the accused] realised that a serious injury or any particular type of injury might result from [his/her] actions. Certainly [the accused] does not have to realise the possibility that an injury of the type and extent suffered by [the victim] might occur.